University of Louisville Law Faculty Blog

Catch A Falling Child

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We have a very exciting, and even historic, event happening in Louisville tonight ! Thirteen  leading officials & allies in the local healthcare community are coming Monday night to commit to work together to make some real change for the health of children in our community, and especially for those in low-income communities.  Please see the attachment to learn more about the Catch A Falling Child Campaign.

Clean, Wet, and Smart, Part II

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Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.  This blog posting is the second in a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I provide links and abstracts to 2 similar articles manifesting the research and ideas of Professor William Andreen, University of Alabama Law School, on the subject: 

 

1) William L. Andreen, "The Evolving Contours of Water Law in the United States: Bridging the Gap between Water Rights, Land Use and the Protection of the Aquatic Environment," Environmental Planning and Law Journal, Vol. 23, 2006.  Available at SSRN: http://ssrn.com/abstract=889744 

 

Although Australia and the United States share a common law heritage, water law has developed in significantly different patterns in the two nations. Much of the credit for Australia's different course can be ascribed to Alfred Deakin, who after taking a study tour of the American West in 1885, wrote a report that rejected the doctrine of prior appropriation as used in the arid states of the American West and advocated a system in which the rights of the state were elevated over those of the individual.

Unfortunately, both countries have generally treated water, just like land and other natural resources, as a commodity for human use, manipulation, and degradation. Little thought or significance, at least until relatively recently, was attached to the adverse environmental impact of reduced stream flows and the severe damage caused by hydrologic modifications such as dams and by various development activities that disrupt and pollute aquatic habitats. Both countries, therefore, face the difficult challenge of trying at a late date to bring together two separate, but inextricably connected, disciplines, one focusing on water use and the other on water quality. The challenge is daunting, especially in light of both existing uses of water "giving rise to settled expectations in Australia and often confirmed as a matter of right in the United States" and anticipated growth in demand.

Complicating the situation in the United States is its fragmented approach to law and regulation dealing with watershed issues. Water quantity law is state-driven, while water pollution law is primarily federal in origin, with the notable exception of non-point source pollution, which is primarily the responsibility of state government. Land use management, on the other hand, is generally a question for local government.

After exploring the three separate regimes governing water use, water quality and land use, the article discusses and evaluates a number of approaches for trying to integrate these regulatory schemes into a mechanism that can enhance and protect the integrity of our aquatic systems while also meeting many human needs in a sustainable and adaptive way. Perhaps the most important aspect of this analysis lies in its attempt to connect, in terms of law and institutions, the natural and symbiotic relationship between land use and water. Although that relationship has long been ignored, it is essential to conceive of a river or other freshwater system as part of a larger interdependent ecosystem, one linking all land and aquatic features in a particular watershed. 
 

 

2) William L. Andreen, "Developing a More Holistic Approach to Water Management in the United States," Environmental Law Reporter, Vol. 36, No. 10277, 2006.  Available at SSRN: http://ssrn.com/abstract=894959 

 

Americans have generally treated water, just like land and other natural resources, as a commodity for human use, manipulation, and degradation. Little thought or significance, at least until relatively recently, was attached to the adverse environmental impact of reduced stream flows and the damage caused by hydrologic modifications such as dams and by various development activities that disrupt and pollute aquatic habitats. The United States, therefore, faces the difficult challenge of trying at a late date to bring together three separate, but inextricably connected, disciplines, one focusing on water use, one on water quality, and yet another focusing on development and land use. The challenge is daunting, especially in light of both existing water uses and anticipated growth in the demand for water.  

Complicating the situation is a fragmented approach to law and regulation. Water quantity law is state-driven, while water pollution law is primarily federal in origin, with the exception of non-point source pollution, which is primarily the responsibility of state government. Land use management, on the other hand, is generally a question for local government.

After exploring the regimes that govern water use, water quality and land use, the article discusses a number of approaches for trying to integrate these regulatory schemes into a mechanism that can better protect the integrity of our aquatic systems, while also meeting most human needs. Perhaps the most important aspect of the analysis lies in its attempt to connect, in terms of law and institutions, the symbiotic relationship between land use and water. Although that relationship has long been ignored, it is essential to conceive of a river and other freshwater systems as part of a larger interdependent ecosystem linking all land and aquatic features in a particular watershed.

Student Tips on Legal Writing and Life

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This week was our last Basic Legal Skills class of the year!  We did an exercise to gain some practice at oral argument.  Each student attempted to tell the class the most important thing the student learned in Basic Legal Skills.  The rest of the class interrupted with specific detail-oriented questions about legal writing.  (If you are a professor interested in using this exercise, I am happy to share my list of questions.)

The students performed admirably (and enjoyed themselves).  Here are the tips that the students shared.  (I have taken some poetic license.)

Legal writing differs from writing in many other disciplines.

It does not require providing long and detailed explanatory background but rather quickly getting to the issue and addressing it concisely.

Short sentences further this end.

Additionally, the legal reader is not interested in the legal writer's opinions.

Instead, the reader desires to know the governing law and how it applies to the facts.

Knowing how to read a case is a first step to being a successful lawyer.

The successful lawyer understands that each case builds on the prior ones and analogizes to precedent.

Drafting a well-thought out outline before writing can insure a well-organized paper.

A well-organized paper is easy to read; using headings, sub-headings, and thesis sentences increases organization and readability.

Writing a rough draft is a key component of legal writing; you must permit time to do this.

Moreover, allowing plenty of time to complete the draft and then finalize it insures that the writing is not done last-minute and is not replete with embarrassing errors.

Toward this end, a time-management plan is critical; through it, you hold yourself accountable.

A citation manual is your "friend."

Indeed, owning citation, grammar, and legal writing sources and knowing how to use them relieves you of the responsibility of memorizing every rule.

Generally, using concrete facts is more persuasive than using many adjectives.

Having a colleague who knows the basic rules of grammar read your work is helpful.

To write a predictive memo, you must be able to understand the question asked, identify the arguments on both sides, identify the relevant portions of case law, and edit.

To write persuasively, you must be able to deemphasize negative facts and case law, choose a rule favorable to the client but likely to be adopted by a neutral judge, and lead with the strongest argument.

Succeeding in legal writing is a balancing act:  rule synthesis, application of rules to facts, large-scale organization, small-scale organization, grammar, writing style, and citation must all be considered.

When serving as your client's advocate, draw on many techniques, such as presenting the facts persuasively, citing the strongest authority you can find, and presenting a professional appearance through proper citation.

Lawyers have difficulties too:  when times are rough, a friend can serve as a shoulder to cry on.

Clean, Wet, and Smart, Part I

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Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.  This blog posting begins a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I provide links and abstracts to 3 articles that I have written on the subject: 

 

1) Craig Anthony (Tony) Arnold, "Clean-Water Land Use: Connecting Scale and Function," Pace Environmental Law Review, Vol. 23, No. 2, p. 291, 2006. Available at SSRN: http://ssrn.com/abstract=1024265 

 

Land use and land development adversely affect water quality in many substantial ways. The current land use regulatory system is blamed for its failure to plan and regulate to protect water quality and watershed health, and a frequent suggestion is to move authority for land use planning and regulation to larger ecologically-based scales, such as watersheds, or to regional, state, or national agencies that can act on a watershed scale.

Despite the allure of these proposals, careful study of the scales and functions of watersheds and the scales and functions of land use presents a nuanced picture of both watershed and land use dynamics, suggesting that watershed institutions might be best suited for watershed planning, technical assistance, facilitation of intergovernmental cooperation, and provision of resources and information, while local governments will continue to be best suited to engage in generalized planning, zoning, permit decisions, and other traditional regulatory functions.

This article discusses the impact of land use on water quality, and then explores the scale and function of both watersheds and land use. It offers lessons about the geographic, functional, problem, and temporal scales of watersheds, and the functional, political, resource, and temporal scales of land use, as well as lessons about the legal scale of freedom and boundaries. Attempting to connect both the scale and function of watershed with both the scale and function of land use, the article recommends a hybrid regional-local model of watershed-based planning and regulation of land use.

 

2) Craig Anthony (Tony) Arnold, "Is Wet Growth Smarter than Smart Growth?: The Fragmentation and Integration of Land Use and Water." Environmental Law Reporter, Vol. 35, No. 3, p. 10152, 2005. Available at SSRN: http://ssrn.com/abstract=1040821 

 

The authority and regimes for controlling land use, water quality, and water use are highly fragmented, both internally and from one another. However, a growing body of evidence demonstrates that this fragmentation comes at great cost to natural and human environments, with increasing impacts of land use practices, water quality conditions, and water uses on one another. This article introduces a concept of wet growth that attempts to achieve some level of integration among these three inter-related aspects of law and public policy.

The Wet Growth concept is distinguished from the popular, yet vague, concepts of Smart Growth, which has failed to give sufficient attention to the water-related impacts of land development and use. The article describes examples of emerging efforts to achieve integration of land use and water regulatory policies. It summarizes the ideas and research of several leading scholars in a book on Wet Growth. The article makes a case for policy diversity in the integration of land and water practices, rejecting the desirability of any single model. Finally, it analyzes the role that local land use planning and regulation can play in achieving aquatically and ecologically sustainable land use practices.

 

3) Craig Anthony (Tony) Arnold, "For the Sake of Water: Land Conservation and Watershed Protection," Sustain: A Journal of Environmental and Sustainability Vol. 14, No. 16, 2006 Available at SSRN: http://ssrn.com/abstract=1089026 

 

Land conservation serves a critical function of protecting watershed health and integrity, which are necessary for healthy natural environments, human life, economic activity, and society. This article describes the various impacts of land use on water quality and watersheds.

Having documented land development's growing degradation of watershed functions, the article examines four methods of protecting water quality through land conservation. These four methods are land use planning and regulation, public land management, private land conservation, and changes in land-use behaviors and values. Analysis of legal tools and limits is supported by a case study of the Anacostia River watershed, one of the most degraded watersheds in the U.S. yet recently the object of diverse and substantial efforts to restore its waterways and manage land development practices.

The article concludes that no single method of land conservation is adequate to protect watersheds. Instead, a policy of policy diversity -- a polycentric model of land conservation and watershed protection -- will maximize changes towards more environmentally responsible land use practices. While the article is likely to be of interest to specialists in land use, property, environmental, and natural resources law and public policy, it can serve as a useful means of introducing students, policy makers, or members of the public to the varieties of land conservation methods or to the relationship between land use and water quality.

 

Keeping Up with the Virtual Landscape

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The following are a few other useful blogs that address issues at the intersection of land use and the environment: 

 

Law of the Land (Professor Patty Salkin’s blog from Albany Law School’s Government Law Center), http://lawoftheland.wordpress.com/ 

 

Planetizen (The Planning and Development Network), http://planetizen.com/interchange  

 

Environmental Justice Blog, http://environmentaljusticeblog.blogspot.com/ 

 

Center for Neighborhood Technology: Sustainable Communities – Attainable Results (a blog of the Center for Neighborhood Technology), http://weblog.cnt.org/ 

 

Land Use Prof Blog (run by Professor Paul Boudreaux of Stetson University College of Law), http://lawprofessors.typepad.com/land_use/ 

 

Green Building Law blog (run by Shari Shapiro, a Philadelphia attorney and LEED Accredited Professional), http://greenlaw.blogspot.com/ 

 

Smart Growth Around America (Smart Growth America blog), http://blog.smartgrowthamerica.org/?p=104 

 

American Rivers blog (run by the environmental group American Rivers), http://blog.americanrivers.org/wordpress/index.php 

 

 

 

The Gator Nation’s Land Use & Environmental Research

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In the next couple of weeks, I will be giving two presentations at the University of Florida’s Levin College of Law, which has an excellent environmental and land use law program (see http://www.law.ufl.edu/elulp/index.htm).  As I anticipate my visit to Florida, I note that the University is the source of much significant scholarship on issues related to the intersection of land use and the environment.  Below are abstracts of, and links to, 4 examples of the faculty’s works: 

 

1) Christine A. Klein, "The New Nuisance: An Antidote to Wetland Loss, Sprawl, and Global Warming" Boston College Law Review (2007).  Available at SSRN: http://ssrn.com/abstract=967992:

 

Marking the fifteenth anniversary of Lucas v. South Carolina Coastal Council — the modern U.S. Supreme Court's seminal regulatory takings decision — this Article surveys Lucas's impact upon regulations that restrict wetland filling, sprawling development, and the emission of greenhouse gases. The Lucas Court set forth a new categorical rule of governmental liability for regulations that prohibit all economically beneficial use of land, but also established a new defense that draws upon the states' common law of nuisance and property. Unexpectedly, that defense has taken on a life of its own — forming what this Article calls the new nuisance doctrine. As this Article explains, nuisance is new in at least two important ways. First, it has taken on a new posture, evolving from defense, to offense, to catalyst for legislative change. Second, nuisance has taken on new substance, triggered in part by Lucas's explicit recognition that “changed circumstances or new knowledge may make what was previously permissible no longer so.

 

2) Danaya C. Wright & Scott A. Bowman, "Charitable Deductions for Rail-Trail Conversions: Reconciling the Partial Interest Rule and the National Trails System Act," William & Mary Environmental Law and Policy Review (2008), Available at SSRN: http://ssrn.com/abstract=1081655 

 

This article examines an undeveloped legal topic at the intersection of tax law and real property law: charitable deductions from income tax liability for donations of railroad corridors to be converted into recreational trails. The very popular rails-to-trails program assists in the conversion of abandoned railroad corridors into hiking and biking trails. But the legal questions surrounding the property rights of these corridors have been complex and highly litigated. In 1983, Congress amended the National Trails System Act to provide a mechanism for facilitating these conversions, a process called railbanking. In essence, a railroad transfers its real property interests in its corridor to a trail sponsor for interim trail use and retains a right to reenter in case rail service needs to be reactivated on the line. Thus, the dual purposes of the statute - interim trail use and rail preservation - are furthered by a process that prevents the corridor from being broken up and irrevocably lost. An important element of railbanking and trail conversion is the prospect for the railroads of a deduction from their income tax liability when they donate these corridors for public trail use. Recently, however, the Internal Revenue Service has begun to question the donations by invoking the so-called partial interest rule Should the IRS prevail in applying this rule, the deduction would be entirely disallowed under current Internal Revenue Code provisions. This article examines the intersection of these two areas of law and proposes ways the railroads can draft their trail use agreements to minimize the likelihood of being challenged by the IRS, and ways the IRS, the STB, Congress, and the railroads can work together to reconcile the conflict in these different laws. In the end, we believe that the rail preservation function is critical to the public welfare and that it is in everyone's best interest to further railbanking and interim trail use. But doing so requires careful drafting and perhaps regulatory changes to ensure that railroads do not unfairly take advantage of the tax system, while at the same time maintaining an incentive for railroad to railbank and offer their corridors for future public use. 

 

3) Mark Fenster, "Regulating Land Use in a Constitutional Shadow: The Institutional Contexts of Exactions" (2006). Available at SSRN: http://ssrn.com/abstract=925911: 

 

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual's property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation's validity and the means by which the regulation attempts to meet the government's objective. Lingle's explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), two regulatory takings decisions that reviewed “exactions,” regulatory conditions placed on proposals to develop land. These decisions required courts to apply the heightened scrutiny of their “nexus” and “proportionality” tests to review not only the challenged condition's effects but also its validity and means. In a somewhat oblique final section of Lingle that could be dismissed as non-binding dicta, the Court characterized its exactions jurisprudence as a limited effort to protect owners from extortionate exactions that single out individual property owners and confiscate their land and right to exclude the public. Lingle explained that the Court's rigorous tests for exactions, and their focus on regulatory means, apply only when an exaction's effects constitute a clear taking of property.

Lingle's description of its exactions decisions left important matters open for debate - matters that this Article attempts to resolve. Lingle's narrow characterization of its exactions decisions is not dicta because Lingle aimed to provide a comprehensive, unifying explication of the entirety of the Court's takings jurisprudence; and even if dicta, Lingle repeats similar statements in recent decisions about the limited nature of Nollan and Dolan and therefore makes plain what the Court assumes it has already settled. Furthermore, when read as Lingle requires, Nollan and Dolan fit within the broader approach to the Takings Clause that the Court articulated in Lingle and its other Takings Clause decisions from the same term, San Remo Hotel v. City and County of San Francisco (2005) and Kelo v. City of New London (2005). A narrow understanding of Nollan and Dolan is thoroughly consistent with the Court's effort to establish an institutionalist approach to the Takings Clause that defers to the properly derived decisions of competent, settled institutions. Nollan and Dolan can be read narrowly because judicial enforcement of the federal constitution is merely one institutional check among a web of public and private institutions that constrain local regulatory discretion. The powerful constitutional protection that “nexus” and “proportionality” provide may be limited, but in their shadow public actors in state courts and legislatures and in local governments, as well as voters, property owners, developers, and homebuyers offer a more complex, responsive, and locally sensitive web of legal, political, and market controls than the broad, formal rules established in Nollan and Dolan.
   

 

4) Mary Jane Angelo, "Embracing Uncertainty, Complexity and Change: An Eco-Pragmatic Reinvention of a First Generation Environmental Law" (August 23, 2005). Available at SSRN: http://ssrn.com/abstract=788504: 

 

Recent scientific reports demonstrate that despite more than thirty years of environmental regulation, we are experiencing unprecedented declines in bird and wildlife species, as well as ecosystem services. Pesticides are at least in part to blame for these profound declines. U.S. pesticide law has failed to carryout its mission. Moreover, a number of lawsuits have been filed recently asserting that the registration of certain pesticides is in violation of the federal endangered species act. One of the great ironies of environmental law is that the ecological consequences of pesticide use, such as the devastating impacts DDT had on predatory bird populations, which fueled the environmental movement of the late 1960's and early 1970's, largely have been ignored for the past 30 years. Only very recently has there been renewed interest in the ecological (as opposed to human health) risks posed by pesticides. Moreover, the explosion of pesticidal genetically modified organisms (GMOs) in agriculture has raised concerns regarding the novel risks to biodiversity posed by these new pesticides. Surprisingly, however, the primary federal statute governing pesticides, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), has not changed significantly with regard to ecological matters since 1972 and remains primarily a consumer protection statute not well suited for ecological protection. Moreover, the manner in which the Environmental Protection Agency (EPA) has implemented FIFRA has not kept pace with developments in our understanding of the uncertainty, complexity, and changing nature of ecological systems. This Article breaks new ground by being the first to use the new legal discipline of "eco-pragmatism" to analyze, and then reinvent, U.S. pesticide law to better protect ecological resources.

For years, environmental legal scholars have sought a middle ground between absolutist risk-based approaches to environmental regulation and cost/benefit analysis approaches. In the past several years, scholars have begun exploring the emerging field of eco-pragmatism - a dramatic new framework for environmental decision-making developed by Professor Daniel Farber - as a way to achieve a workable middle ground. Although a number of prominent legal scholars have analyzed eco-pragmatism in a general sense, none have attempted to apply an eco-pragmatic framework to any environmental pollution control law. This Article is the first to do so. This Article builds on Farber's work and the works of a number of other prominent legal scholars by first bolstering eco-pragmatism through consciously incorporating into it principles of ecological science, and then applying the strengthened eco-pragmatism to a long overlooked area - pesticide law. As the first attempt to actually apply eco-pragmatism to a field of environmental pollution control law, this Article represents an important step in the development of this area of legal theory. By analyzing current pesticide law as well as EPA's implementation of such law through an eco-pragmatic lens, this Article identifies areas of the law that are in need of revision and proposes revisions based on eco-pragmatic principles, which if implemented would greatly enhance our ability to protect critical ecological resources.

Pragmatic Environmentalism in Land Use

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As I mentioned in my last post, I am making a couple of exceptions to my normal practice of blogging about only those resources that can be downloaded for free.  The second book I recommend as great food for thought is: Ben Minteer’s The Landscape of Reform: Civic Pragmatism and Environmental Thought in America (MIT Press 2006).  Minteer is a professor in the Human Dimensions of Biology Faculty in the School of Life Sciences at Arizona State University.  Trained in philosophy, Minteer has produced several works that transcend traditional disciplinary boundaries to tackle important questions about environmental ethics, conservation of nature, and democracy.  A description of The Landscape of Reform (from the book jacket) appears below: 

 

Ben Minteer offers a fresh and provocative reading of the intellectual foundations of American environmentalism, focusing on the work and legacy of four important conservation and planning thinkers in  the first half of the 20th century:

Liberty Hyde Bailey, a forgotten figure of the Progressive conservation movement;

urban and regional planning theorist Lewis Mumford;

Benton MacKaye, the forester and conservationist who proposed the Appalachian Trail in the 1920s; and

Aldo Leopold, author of the environmentalist classic A Sand County Almanac.

Minteer argues that these writers blazed a significant “third way” in environmental ethics and practice, a more pragmatic approach that offers a counterpoint to the anthropocentrism-versus-ecocentrism – use-versus preservation – narrative that has long dominated discussions of the development of American environmental thought.

 

Minteer shows that the environmentalism of Bailey, Mumford, MacKaye, and Leopold was also part of a larger moral and political program, one that included efforts to revitalize democracy, conserve regional culture and community identity, and reclaim a broader understanding of the public interest that went beyond economics and materialism.  . . . [He] considers two present-day manifestations of an environmental third way: 1) Natural Systems Agriculture, an alternative to chemical and energy-intensive industrial agriculture; and 2) New Urbanism, an attempt to combat the negative effects of suburban sprawl.  By rediscovering the pragmatic roots of American environmentalism, writes Minteer, we can help bring about a new, civic-minded environmentalism today.

 

Legal Writing Tip - Preparing for Oral Argument

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Another tip that Chief Justice Roberts shares with Bryan Garner is a great method to prepare for questions from a judge who is not as familiar with the legal area as you are.  His Honor states that you should be able to tell a lay person in five minutes, or less, what the case is about and why you should win.  If the lay person cannot understand what the case is about or does not see why you should win in that time, his Honor suggests that you need to rethink the argument again.

"Severe Mental Illness in the Academy: A Law Professor's Story"

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On March 11, 2008 I spoke on "Severe Mental Illness in the Academy: A Law Professor's Story" at the Gould School of Law at the University of Southern California.  It was an exciting time, as in addition to telling my story of life as a law professor who has a severe mental illness I finally met, in person, someone to whom I have become extremely close--Professor Elyn R. Saks, author of The Center Cannot Hold:  My Journey Through Madness.  Elyn and I are the only two law professors in the United States who have publicly acknowledged having a severe mental illness (schizophrenia and bipolar disorder, respectively).  My speech was very well-received by an attentive audience of students, faculty, and staff.  Then, on March19, 2008 I spoke on the same topic to the Student Health Law Association of the Brandeis School of Law and its invited guests (students, faculty, and staff).  Once again, the audience was very kind.  I believe I made some inroads against the stereotypes of those with mental illness, showing one can both have a severe mental illness and be a successful professional.  If so, I will have accomplished what I set out to do when I went public with my condition--fight stigma, and show that treatment works.

Clarifying the Distinction Between Surveillance and Electioneering

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Here's the final excerpt from my article.

If the Board is to harmonize its precedent, it must clarify the distinction between electioneering and surveillance cases. Consistent with precedent, it should find mere presence objectionable only when the sole possible purpose of the presence is surveillance. Patrick Industries,105 like

Blazes Broiler and Electric Hose and Rubber Company, makes clear that presence is objectionable only when it is without a justification other than observation of employees.106 In Patrick Industries, two managers and a supervisor were gathered "at a location within a few feet of the route taken by most . . . employees as they went to vote, thirty-five feet from the [polling room], and seventy-two feet from the voting booth."107 The managers and supervisor stood there because a machine located there was operating erratically. They remained there for at least twenty minutes, discussing the machine, its production output, and also a broken air compressor.108 The Board held that the conduct was not objectionable.

The ALJ reasoned that "if the supervisors' purpose in standing near the [machine] was to convey to the employees that they were being watched . . . [the] objection might well be a valid one."109 However, the ALJ concluded that the supervisors were at the location for work-related reasons.110

The Board should follow the suggestion of Member Hunter in Blazes Broiler,111 and explicitly overrule Performance Measurement to the extent it appears to set forth a per se rule prohibiting presence in areas where employees pass to get to the polls. Indeed, to the extent Performance Measurement can be interpreted as an electioneering case, it has been implicitly overruled. It is pre-Milchem, pre-Boston Insulated Wire, and has been implicitly overruled to the extent it contradicts those cases. Milchem intended to set forth a clear standard, which had not been enunciated in prior decisions, for dealing with the effect of conversations between parties to the election and employees preparing to vote.112 And, Boston Insulated Wire made absolutely clear that no per se rule governs electioneering; rather, the Board considers a number of factors to find impermissible electioneering.113

It makes little sense to have a rule stricter than Milchem's, which applies to those standing in line to vote, applicable at a spot far removed from the polling place. Yet, the D.C. Circuit's interpretation of Electric Hose and Performance Measurement in Nathan Katz arguably leads to exactly this result. Milchem prohibits only sustained conversation with employees waiting to vote.114 Thus, if the D.C. Circuit's interpretation is correct, a union agent can be present in the polling place and engage in limited conversation with employees without objection; but, if she is present outside the polling place in an area which employees pass to vote, even with substantial justification, the conduct is objectionable.

105. Patrick Industries, 318 N.L.R.B. 245 (1995).

106. Blazes Broiler, 274 N.L.R.B. 1031 (1985) (holding that a union representative seated in a restaurant approximately thirty feet from the entrance to the voting room was not objectionable because he could not observe employees entering the voting room from his vantage point); Electric Hose and Rubber Co., 262 N.L.R.B. 186, 216 (1982).

107. Patrick Industries, 318 N.L.R.B. at 256.

108. Id. at 256.

109. Id.

110. Id.

111. 274 N.L.R.B. 1031, 1031 n.3 (1985).

112. Milchem, Inc., 170 N.L.R.B. 362, 362 (1968).

113. Boston Insulated Wire, 259 N.L.R.B. 1118, 1118 (1982). This case followed Star Expansion Industries, 170 N.L.R.B. 364 (1968), which was decided the same day as Milchem and addressed electioneering outside, but in close proximity to, the polling place.

114. Milchem, 170 N.L.R.B. at 363.